Letter to Congress on Mandated Contraceptive Coverage and Conscience Protection

Letter to Congress on Mandated Contraceptive Coverage and Conscience Protection

July 25, 2000

Dear Member of Congress:

As the House of Representatives considers the District of Columbia appropriations bill for Fiscal Year 2001, I write to explain the need for strong conscience protection in the bill's provision on mandated contraceptive coverage.

As approved by committee, the bill prevents implementation of the D.C. City Council's proposal to force all employers in the District of Columbia to buy coverage for a broad range of contraceptives and abortifacient "morning-after" drugs for their employees. The bill also expresses the intent of Congress that any future D.C. legislation on this issue include a conscience clause that "provides exceptions for religious beliefs and moral convictions."

On the House floor there may be an effort to delete or weaken this provision, possibly by deleting conscience protection based on moral convictions. Congress should reject such a change.

We object to a government mandate for contraceptive coverage generally. At a time when tens of millions of Americans lack even the most basic health coverage, efforts to mandate elective drugs and devices which raise serious moral problems and can pose their own health risks are misguided. In addition, any such mandate will cause needless injustice if it does not provide full protection to those who object for reasons of conscience. This is so for several reasons:

Narrow Language Protecting only Churches Is Inadequate.City Council members who strongly favor the contraceptive mandate offered a conscience clause protecting only "religious organizations" when they approved their bill July 11. But they defined a "religious organization" so narrowly that it would exclude hospitals, universities, religiously affiliated social services agencies such as Catholic Charities, and even Catholic elementary schools. An organization could qualify for exemption only if its "primary purpose" is the "inculcation of religious beliefs" – and as a Council member observed, Catholic schools teach subjects other than religion. The Council also would have assessed a fine against each religious organization claiming an exemption; the fine would defray the costs of investigations by the D.C. Insurance Commissioner to ensure that the organization is "religious" enough. Council members who support genuine conscience protection rightly declined the offer of "protection" framed in this way. A vague requirement to protect only "religious beliefs," however, may invite renewed mischief of this kind.

Moral Concerns and Abortifacient Drugs.The D.C. mandate requires coverage of all prescription drugs and devices approved by the FDA for contraception, including what the FDA calls "postcoital emergency contraception." Aside from specifically religious concerns, there is broad agreement that such drugs often work by destroying an early human embryo. This raises moral concerns about early abortion which transcend any particular religion. Congress itself bans federal funding of experiments that harm or destroy human embryos in the first two weeks of life -- a sound moral decision based on no one religious belief. Congress should not deny the same right of morally based decision making to others.

Federal Precedent on Rights of Conscience.Numerous conscience clauses in federal law protect conscientious objection based on both religious and moral grounds, in contexts ranging from capital punishment to abortion and sterilization. Many state laws are similarly broad. These are based on a sound understanding that forcing someone to engage in activity that violates his or her deeply held conscientious beliefs is a violation of human rights and an abuse of government. Clearly, not all conscientious moral convictions are based on religious belief. Indeed, Congress protects medical residency programs from being forced to provide abortion training regardless of whether their opposition is morally based, because abortion is simply not the kind of practice which anyone should be forced to participate in for any reason. Current protections against forced participation in abortion and sterilization also extend to organizations as well as individuals. To retreat from this tradition now in favor of narrower and more grudging protection restricted to religious belief alone would send an ominous signal regarding the U.S. government's respect for rights of conscience.

Protecting Individuals' Conscience Rights.By mandating prescription contraceptive coverage in health plans, the government increases the pressure on individual physicians and pharmacists in these plans to violate their own consciences. Even without a government mandate, pharmacists' careers have been endangered when they refuse on moral grounds to fill prescriptions for abortifacient "emergency contraception" (see J. Allen, "'Morning-after pill' battles flare: Patients, doctors, druggists in birth-control tug of war," Washington Times, May 27, 1997, p. A3). In light of such cases, the American Pharmaceutical Association and other organizations have urged respect for rights of "conscientious refusal" which they do not confine to religious grounds. Codes of medical ethics, as well, generally speak of physicians' right to refuse participation in activities they find immoral or unethical. The federal government has already enacted conscience protection based on both religious and moral convictions for health care personnel in health plans providing coverage to federal employees. It should do no less here, attending as well to employees who could be forced by government to purchase morally objectionable contraceptive coverage or forgo prescription drug coverage altogether.

We believe contraceptive mandates should not be imposed on private organizations. But if some form of mandate is adopted, effective protection for conscientious objection on both moral and religious grounds should be ensured.

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